United States v. Tommy Daniel

Case: 11-10050 Document: 00512204221 Page: 1 Date Filed: 04/10/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 10, 2013
No. 11-10050
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
TOMMY DALE DANIEL,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:07-CR-142-1
Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Tommy Dale Daniel appeals his conviction and sentence for two counts of
possession of child pornography. His first of two contentions concerns the denial
of his motion to suppress. He claims: the e-mail he sent to a local television
reporter, which supported the original search warrant, did not violate either
statute cited in the search-warrant affidavit; and, the affidavit improperly relied
upon the television reporter’s unreasonable subjective fear. For these reasons,
he contends the search-warrant affidavit failed to establish probable cause,
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 11-10050
invalidating the searches of his computer that resulted in the discovery of child
pornography.
Our court employs a two-step process for reviewing the denial of a motion
to suppress where a search warrant is involved. United States v. Froman, 355
F.3d 882, 888 (5th Cir. 2004). “First, we determine whether the good-faith
exception to the exclusionary rule applies.” Id. (internal quotation marks
omitted). If it applies, the decision not to suppress must be affirmed. Id. Only
if the exception does not apply do we proceed to the second step, determining
whether there was a substantial basis for finding probable cause. Id.Applying this two-step process, the district court ruled that the good-faith
exception to the exclusionary rule applied. Accordingly, it did not reach whether
there was a substantial basis for the magistrate judge to find probable cause.
On appeal, Daniel challenges only probable cause; he does not challenge the
district court’s determination that the good-faith exception to the exclusionary
rule applied. As Daniel does not address the district court’s rationale for
denying the motion to suppress, he has waived any contention he could have
raised to the denial of the motion to suppress. E.g., United States v. Reagan, 596
F.3d 251, 254-55 (5th Cir. 2010).
Daniel’s second contention concerns the awarded restitution. He contends:
the court abused its discretion in awarding $150,000 to L.S., a minor child whose
abuse was depicted in child pornography possessed by Daniel; restitution awards
under 18 U.S.C. § 2259 are limited to losses caused by the offense of conviction,
and the evidence showed his offense conduct did not cause L.S.’ losses; and, at
most, the restitution award should have been limited to the nominal incremental
loss to L.S. that resulted from his offense conduct. Alternatively, he contends
that, if the evidence established his offense conduct was a but-for cause of L.S.’
damages, § 2259 still requires that the evidence show his offense conduct
proximately caused the damages.
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Case: 11-10050 Document: 00512204221 Page: 3 Date Filed: 04/10/2013
No. 11-10050
In an en banc decision subsequent to the briefing in this appeal, the
restitution issues presented here were resolved against the positions taken by
Daniel. In re Amy Unknown, 701 F.3d 749, 759-74 (5th Cir. 2012) (en banc),
petition for cert. filed (Jan. 13, 2013) (No. 12-8505). In Amy Unknown, our court
held: the phrase “as a proximate result of the offense” applies only to 18 U.S.C.
§ 2259(b)(3)(F) (providing mandatory restitution for “any other losses suffered
by the victim as a proximate result of the offense”); and there was no proximate-
cause limitation to the remainder of § 2259(b)(3) (listing specific types of loss for
which restitution is mandated). Id. at 752. Our court further held child-
pornography victims should receive restitution awards for the full amount of
their losses against each defendant convicted of possessing their images. Id. at
773-74. Accordingly, any error in the restitution award was in Daniel’s favor.
See id. at 774. The Government, however, has not challenged the award; nor has
L.S. filed a mandamus petition challenging it. Therefore, we must uphold the
award. See id.
AFFIRMED.
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